| Walter v Jones, Sledzik, Garneau & Nardone, LLP |
| 2009 NY Slip Op 08003 [67 AD3d 671] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Margarita T. Walter, Appellant, v Jones, Sledzik, Garneau& Nardone, LLP, Also Known as Jones & Garneau, LLP,Respondent. |
—[*1] Jones Garneau, LLP, sued herein as Jones, Sledzik, Garneau & Nardone, LLP, also known asJones & Garneau, LLP, Scarsdale, N.Y. (Marcy Blake of counsel), respondent pro se.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Westchester County (Smith, J.), dated March 19, 2008,which, among other things, granted the defendant's unopposed motion to dismiss the complaintfor lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), and (2) a judgment of the samecourt, dated June 25, 2008, which, upon the order dated March 19, 2008, and upon a subsequentorder of the same court dated June 19, 2008, inter alia, denying the plaintiff's motion, in effect, tovacate her default in opposing the defendant's motion to dismiss the complaint, is in favor of thedefendant and against her dismissing the complaint. Justice Balkin has been substituted forformer Justice Spolzino (see 22 NYCRR 670.1 [c]).
Ordered that on the Court's own motion, the notice of appeal from the order dated June 19,2008 is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,
Ordered that the appeal from the order dated March 19, 2008 is dismissed, as no appeal liesfrom an order entered on a party's default (see CPLR 5511; Matter of Bouie v Arvelo-Smith, 17AD3d 461 [2005]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff did not effect proper service of process upon the defendant, since she failed todeliver the summons, or cause it to be delivered, to an individual who was authorized to acceptservice on behalf of the defendant (seeHossain v Fab Cab Corp., 57 AD3d 484, 485 [2008]; Kurshan v Townhouse Mgt.Co., 223 AD2d 402 [1996]). The defendant moved pursuant to CPLR 3211 (a) (8) to dismissthe complaint for lack of personal jurisdiction. The plaintiff failed to oppose that motion, and theSupreme [*2]Court granted it upon her default.
Thereafter, the plaintiff moved, in effect, to vacate her default. The Supreme Court properlydenied her motion. A party seeking to vacate an order entered on his or her default must establishboth a reasonable excuse for the default and a meritorious cause of action (see Matter of Jones v Stewart, 63AD3d 836 [2009]; Aguilera vPistilli Constr. & Dev. Corp., 63 AD3d 765, 768 [2009]; Zherka v Zherka, 17 AD3d 668[2005]). Contrary to the plaintiff's contention, neither the fact that she was proceeding pro se, norher belief that the defendant's motion was frivolous and, therefore, that opposition wasunnecessary, constituted a reasonable excuse for her default (see Kanat v Ochsner, 301AD2d 456, 458 [2003]). " 'A litigant appearing pro se acquires no greater right than any otherlitigant and such appearance may not be used to deprive defendants of the same rights enjoyedby other defendants' " (Roundtree v Singh, 143 AD2d 995, 996 [1988], quotingMorgan v Sylvester, 125 F Supp 380, 388 [1954], affd 220 F2d 758 [1955],cert denied 350 US 867 [1955]). Accordingly, the Supreme Court providently exercisedits discretion in denying the plaintiff's motion, in effect, to vacate her default.
The plaintiff's remaining contentions are without merit. Miller, J.P., Angiolillo, Balkin andDickerson, JJ., concur.